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2004 DIGILAW 107 (UTT)

Manoj Chhabra v. Manisha

2004-07-17

J.C.S.RAWAT

body2004
JUDGMENT Hon'ble J.C.S. Rawat, J.-Heard Sri Arvind Vashishth learned counsel for the revisionist husband. Perused the record. Opposite parties were not present despite service. 2. This is a petition under Section 19 Family Court Act read with 397/401 of the Code of Criminal Procedure (for short 'Code') against the order dated 1.11.2003 passed by the Family Judge, Dehradun, whereby the Matrimonial Misc. Case No. 555/2002 was allowed and awarded the maintenance allowance @ Rs. 3000/- per month to the wife under Section 125 of the Code. 3. Brief facts leading to the present revision are that an application dated 16.7.2002 under Section 125 of the Code was filed by the opposite parties (wife and daughter) before the Family Court, Dehradun. The Family Judge, Dehradun vide order dated 10.7.2003 rejected the interim application for maintenance on the ground that the affidavits have been exchanged but the arguments could not be concluded and there is no complete evidence on record and fixed the case for final disposal. Aggrieved by the said order, petitioners-wife & daughter challenged the said order in WP. No. 861(M/S) of 2003, wherein it has been observed that the Principal Judge, Family Court, Dehradun has erred in rejecting the application of the opposite parties and the impugned order dated 10.7.2003 was quashed and the Principal Judge was directed to decide the application afresh. 4. Thereafter, the case was listed on different dates arid ultimately the learned Judge heard the parties on 29.10.2003 on the interim maintenance application and reserved the order on the said application. The learned Judge instead of disposing the application on interim maintenance passed the final order on the application of the opposite parties under Section 125 of the Code. 5. The petitioner-husband has challenged the final order and alleged that the application was decided by the learned Judge without giving opportunity to adduce the evidence as contemplated under Section 126 of the Code. Perusal of the record reveal that the learned Judge while passing the order dated 10.7.2003 had observed that only affidavits have been exchanged and the cross-examination of the witnesses was to take place. The learned Judge without taking further evidence as provided under Section 126 Cr.P.C. decided the application under Section 125 of the Code on 1.11.2003 and passed the final order- in the case. 6. Section 126 provides as under : "2. The learned Judge without taking further evidence as provided under Section 126 Cr.P.C. decided the application under Section 125 of the Code on 1.11.2003 and passed the final order- in the case. 6. Section 126 provides as under : "2. All the evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded-in the manner prescribed for summons cases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper. 3. The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just." 7. For the aforesaid reasons, the order dated 1.11.2003 passed by the Principal Judge, Dehradun is liable to be set aside. The learned Judge would have first disposed of the application of interim maintenance and thereafter sufficient opportunity should have been given to adduce the evidence as provided under Section 126 of the Code while disposing of the application of the opposite parties pending under Section 125 of the Code. 8. The revision is allowed and the impugned order dated 1.11.2003 is set aside.